A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Friday, 25 April 2014

The annual International Criminal Court summer school at the Irish Centre for Human Rights is the premiere summer school specializing on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject and by legal professionals working at the International Criminal Court. The summer school is attended by legal professionals, academics, postgraduate students and NGOs. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Participants are also given the opportunity to network with the speakers throughout the week. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, universal jurisdiction, immunities, and the role of victims. We are delighted to announce that this year we will have a lecture on Africa and the ICC.This year’s list of speakers is:Professor William Schabas- Irish Centre for Human Rights, School of Law, NUI Galway and School of Law, Middlesex University
Dr. Fabricio Guariglia- Appeals Division of the Office of the Prosecutor at the International Criminal Court
Dr. Mohamed M. El Zeidy- Pre-Trial Chamber II at the International Criminal Court
Dr. Rod Rastan- Office of the Prosecutor at the International Criminal Court
Professor Ray Murphy- Irish Centre for Human Rights, School of Law, NUI Galway
Dr. Noelle Higgins- Irish Centre for Human Rights, School of Law, NUI GalwayDr. Shane Darcy, Irish Centre for Human Rights, School of Law, NUI GalwayDr. Nadia Bernaz, School of Law, Middlesex UniversityMr. John McManus, Crimes Against Humanity and War Crimes Section, Canadian Department of JusticeProfessor Megan A. Fairlie, Florida International UniversityDr. Mohamed Badar, Northumbria University School of Law, United KingdomProfessor Donald M. Ferencz, Middlesex University School of Law, London Dr. Kwadwo Appiagyei Atua, University of Ghana and University of Lincoln.For more information on the Summer School and to register please visit the website at http://www.conference.ie/Conferences/index.asp?Conference=351 or email iccsummerschool@gmail.com.

Tuesday, 22 April 2014

The joint statement issued late last
week in Geneva by the United States, the European Union, Russia and Ukraine
includes the following:

Amnesty will be granted to protesters
and to those who have left buildings and other public places and surrendered
weapons, with the exception of those found guilty of capital crimes.

There is no mention of international
crimes. The statement seems to be at odds with the position taken by the United
Nations Secretary-General that amnesty for international crimes cannot be part
of negotiations for a peace agreement to the extent that international crimes
are concerned.

The final phrase is a legal curiosity,
in that it excludes amnesty to those 'found guilty of capital crimes'.

The statement provides some confirmation that the statement contemplates more than trivial or insignificant offences associated with occupying building. The idea
of finding people guilty suggests that as a preliminary they will be tried , and this seems incompatible with the notion of amnesty, which would
normally be raised as an exception to jurisdiction at the start of a trial.
Moreover, 'capital crimes' refers to crimes subject to the death penalty. But
capital punishment has been abolished in Ukraine. Ukraine is a Party to
Protocol No. 13 of the European Convention on Human Rights by which condemnation to the death
penalty is prohibited in all circumstances. In other words, the possibility that
someone could be found guilty of a capital crime in Ukraine is ruled out by
Ukraine’s own treaty obligations. Genocide, crimes against humanity and war crimes are not 'capital crimes' in Ukraine. What on earth did the the EU – all EU members are
parties to Protocol No. 13 – think they meant by the phrase ‘found guilty of
capital crimes’? Is this just proof of the fact that diplomats will sign almost
anything as long as they can get agreement?

This Friday in Geneva, the Centre for
Humanitarian Dialogue and the Transitional Justice Institute will be presenting
the Belfast Guidelines on Amnesty and Accountability to various stakeholders,
experts, diplomats and officials in the city. The Belfast Guidelines present a
nuanced and sophisticated approach to the issue of post-conflict amnesty and
amnesty as a tool to peacemaking. They are about the balancing of competing
obligations. They resist the extreme position advocated in some quarters by
which amnesty for international crimes is said to be prohibited by
international law.

Last week’s four-party statement on
Ukraine is further evidence of the abundant practice indicating that there is
no prohibition under international law of amnesty, even for genocide, crimes
against humanity and war crimes.

Sunday, 20 April 2014

In
a dramatic example of judicial activism, a Trial Chamber of the International
Criminal Court has issued what will surely be known as the ‘Ruto Subpoena Decision’. It ‘Requires’ the appearance of several witnesses ‘as a matter of
obligation’ and ‘Requests the assistance of the Government of Kenya in ensuring
the appearance of the witnesses’. The decision is signed by Judges Eboe-Osuji
and Fremr. A dissenting opinion is to be filed by Judge Herrera Carbuccia.

Until
last week’s decision, most specialists on the law of the Court did not think
that such authority lay within the Rome Statute or the Rules of Procedure and Evidence. Indeed, there have been
frequent criticisms by scholars about the absence of a subpoena power. Some
have called for amendment of the Statute in order to repair this gap. The
Prosecutor and the defence lawyers seemed to concur, because in almost a decade
of judicial activity none had asked the Court to issue a subpoena.

Now,
it seems, the power was there all along. The judgment relies upon a doctrine of
implied powers. It relies on rulings of the International
Court of Justice concerning implied powers of the United Nations. The Chamber’s
argument might have been more compelling had it referred to implied powers
rulings of international criminal tribunals or, at least, international human
rights tribunals. There is of course some good authority here. In particular, the
decision of the European Court of Human Rights, in Mamatkulov and Askarov v.
Turkey, on the binding
force of a provisional measures decision would seem to be helpful to the
Chamber.

The
Chamber supports its proposition with reference to the subpoena provisions in
the Rules of other international criminal tribunals. In particular in notes
such provision in the Rules of the tribunals for Sierra Leone, Lebanon and
Cambodia, stating ‘it would require very clear language indeed for the States
Parties to the Rome Statute to be taken to have intended that the ICC … should
be the only known criminal court in the world (at the international and the
national levels) that has no power to subpoena witnesses to appear for
testimony’. But the three tribunals in question were created after the Rome
Statute. The Chamber's argument works just as well, perhaps better, in the other
direction: the drafters of the Rules of those subsequent tribunals made express provision
for subpoena power because the Rome Statute suggested that the default position
of international law was that no such power lay with an international criminal
tribunal.

Most
observers of the Rome Conference consider that the absence of an express
subpoena power in the Statute was quite intentional. Reference might also be
made to the Rules of Procedure and Evidence, where there was an opportunity to
correct any ‘oversights’. Probably many delegations at the Rome Conference were
reacting to an earlier case of judicial activism. In October 1997, eight months
before Rome, the Appeals Chamber of the Yugoslavia Tribunal had issued an order
against Croatia (the case is known as the Blaškić Subpoena Decision). They were
concerned about intrusions into State sovereignty by activist judges, especially when national
security information was concerned. The visible result in the Rome Statute can
be found in the feeble text of article 72. The invisible result is probably the
lack of a power to subpoena witnesses. That explains why article 93 speaks of
States facilitating ‘voluntary appearance’ of witnesses but is silent on
forcing them by compulsion to appear.

Understandably,
the ruling of the Trial Chmaber is quite dismissive of the relevance of travaux préparatoires. This is quite a huge departure from the case
law of the Court, which has generally attached great significance to the
preparatory work of the Statute. Several of the judges and many of the academic commentators were participants in the
Rome Conference

Perhaps
the reason why the issue has not previously arisen is that parties to cases
before the Court never felt the need to force a witness to testify. The significance
of compulsion to testify is probably overrated. It is a rare occurrence for
counsel to force the testimony of an uncooperative or hostile witness. The
results are unpredictable and dangerous. Usually, lawyers require a subpoena in
order to overcome a legal or contractual obstacle, such as bank secrecy.

The
innovation of the Trial Chamber is welcome and exciting. One of the crucial
differences between the International Criminal Court and the other
international criminal tribunals has been the very complex codification of the
law, including the procedural law, applicable to the former. The States that
created the Court wanted to make sure they kept a tight grip on its operations.
But experience shows that judges find ways to express their creativity,
developing the law in unexpected directions. And States are weak, almost
powerless, to resist the development of an institution that takes on a life of
its own. We can see this phenomenon at the other international criminal tribunals
(think of the legendary Tadić
Jurisdictional Decision) as well as the international human rights
tribunals.

It
remains to be seen whether Kenya will comply. Should it refuse, the Chamber can
complain to the Assembly of States Parties (art. 87(7)). Then the States
Parties that, fifteen years ago, almost certainly resisted the idea of a
binding subpoena power will be able to reconsider the matter.

The
prosecution of Ruto (and Kenyatta) has been on shaky ground for some time. Is
this the final effort by the prosecution to revive a faltering case?

Thursday, 17 April 2014

This mosaic consists of the covers of doctoral theses published by graduates of the Irish Centre for Human Rights since the first PhDs were awarded not quite a decade ago. There are 19 of them, with all of the leading legal academic publishers, including Oxford University Press, Cambridge University Press, Martinus Nijhoff, Brill, Routledge and Ashgate. At least three more are forthcoming. Shane Darcy prepared this slide for the annual doctoral seminar at the Irish Centre for Human Rights.

Wednesday, 16 April 2014

The Essex Human Rights Centre is holding a summer school on Human Rights Research Methods at its Colchester campus from 30 June to 5 July 2014. Methodology has a direct bearing on the strength, persuasiveness and legitimacy of human rights research findings and their impact on policy and practice. Strong methodology is also a central requirement in order to secure funding. Yet, we often focus on the substance of human rights without sufficient attention to the methods used. This summer school seeks to fill that gap by providing the core methods and skills needed to carry out human rights research whether documenting human rights violations, drafting human rights reports and articles or preparing funding bids. Participants will learn everything from interviewing victims to researching in repressive societies to becoming ‘quantitatively literate’ in human rights research. The teaching team includes anthropologists, lawyers, political scientists, psychologists and sociologists, three current and former UN Special Rapporteurs, a member of the UN Committee against Torture, the Interim Director of Law and Policy at Amnesty International and donors, all with significant experience on the theory and practice of human rights. It is an ideal course for human rights professionals working in NGOs, international organisations and government, academics and postgraduate students. To find out more, visit: www.essex.ac.uk/hrc/summerschool

One of the consequences of the growth in
open access on-line publishing is the proliferation of what have been called
‘predatory publishers’. These are commercial ventures that attempt to attract
scholars to publish with them and to attend ‘academic’ conferences. Most
academics regularly receive invitations from these operations.

Saturday, 12 April 2014

The former Prime Minister of Trinidad and Tobago, Arthur Robinson, has died. Readers may be familiar with his 1989 request to the General Assembly to consider the foundation of an international tribunal to deal with those suspected of trafficking in drugs. His request, and the resulting General Assembly Resolution, spurned the International Law Commission back into action on the formulation of a Statute for the International Criminal Court, a project that had essentially lain dormant for the best part of four decades. President Song of the ICC referred to Mr Robinson as the 'grandfather' of the International Criminal Court.

An interesting but little-known fact is that Arthur Robinson was a good friend of Professor Robert Woetzel; the two men studied in Oxford together. Professor Woetzel was the founder of the Foundation for the Establishment of an International Criminal Court, and one of the few academics who continued to advocate for the creation of a permanent international criminal tribunal during international criminal justice's Cold War hiatus. Woetzel died suddenly in 1991, just two years before the creation of the International Criminal Tribunal for the former Yugoslavia and seven years before the International Criminal Court came into existence. It is heartening that his friend lived to see their shared vision finally come to fruition.

On 2 April 2014, the State of Palestine notified the Swiss Federal Council, depository of the Geneva Conventions, of its intention to accede to the four Geneva Conventions and Additional Protocol I. The accession of the State of Palestine to the Conventions and Protocol was formally accepted by Switzerland via a letter issued on 10 April.

This is a highly significant development for the recognition of Palestine as a state. The Palestinian Liberation Organisation first sought to join the Geneva Conventions in 1989, which was rejected by the Swiss Foreign Ministry 'due to the uncertainty within the international community as to the existence or the non-existence of a State of Palestine.'

Israel argues that the Geneva Conventions should not apply to the West Bank and Gaza, because no state claimed sovereignty over the territory. This position was rejected by the International Court of Justice, stating that Section III of the Fourth Geneva Convention 'which concerns “Military authority over the territory of the hostile State”, is particularly pertinent in the present case.' Similarly, UN Security Council Resolutions have consistently called upon Israel to apply the Fourth Geneva Convention in Palestine. The Israeli position, while already on very dubious legal grounds, has become even more difficult to justify with this latest development.

The Secretary-General of the United Nations circulated notifications regarding the State of Palestine's accession to 14 other treaties on 9 April. The notification regarding the Genocide Convention can be found here.

Thursday, 10 April 2014

Gabon and El Salvador have
acceded the Second Optional Protocol to the International Covenant on
Civil and Political Rights aiming at the abolition of the
death penalty. There are 80 States partiesto Optional Protocol.
In his recent video message to the Human Rights Council, the Secretary General Ban Ki Moon called on States that
have not yet done so to ratify the Second Optional Protocol to ICCPR. He
also said: 'It is my sincere hope to see many
instruments of ratification as we mark the Protocol’s 25th anniversary at the treaty event in New York later this year.'Thanks to Zaved Mahmoud.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.